Last week, we talked about derivative works and how to avoid accidentally creating a derivative work when you are creating a new product for your business. As I mentioned last week, even if you avoid the creation of a derivative work, you may still run into an issue of creating an “infringing work”. This is a more common type of claim for new intellectual property created after an original work is created. The issue being that that the author of the product that came first claims your new product infringes on their copyright

If the creator of a work that came before yours were to claim infringement on their copyright, they would need to prove the following:

• Originality of the Work – They must prove there are not a large number of other, similar, works out there.
• Access to the copyrighted work – They must prove that you had access to their copyrighted work.
• Probative Similarities between the two works – They must prove in addition to the above points that the works are, in fact, similar.

To avoid this, you need to look at each of the factors before you create your work to make sure you are not, in fact, infringing on a work that came before yours. Because you commonly have access to the original work, when you are creating a new product to serve a market already served by an existing product, it is only necessary to look at the other two elements of any potential copyright claim brought against your new work.

The first is that certain components of the work are not original. Much like all phone books list names alphabetically by last name, some components may be the only logical way to display the information in your new product, which is the reason it is similar to the existing work (and potentially in other similar works). That would make the particular pieces not original. Put another way, it may be like elements in a novel. Depending on the genre, there are certain elements that are similar in each novel written. Those elements are not owned by any one author. It is the expression of those elements that is protected. The same would be true for your new product. Your expression of the idea is your property, just as the existing work’s expression is theirs.

The second issue will be “Probative Similarity” between the two works. This is where you differentiate yourself from other products on the market. Even if some elements of the products are similar because they are the only logical expression of a particular idea, you want to make your new product different from any other product on the market. This is both good business, and necessary to avoid any claims for infringement. The differences are where the true defenses lie. If you can show that your new product is not similar to an already existing work and that any similarities are not original expressions of an idea, you should be able to protect against any claims of infringement on your new product.

Much like we discussed last week, avoiding infringement comes from innovation. Creating something new. Though you may look at other products in your research, you do not want to simply create a different version of an already existing product. Even if you think the version is better. You want to create something new. Something different. In some cases, especially when it comes to intellectual property products, there will be similarities in the products because of the needs and desires of the market. It is how you approach the solution that will ensure you have a product that will change your industry, but will also be protected from any claims of infringement from those upset of your market disruption.

I will talk to you next week, unless you talk to me first 😉

Josh